Mubarak v Mubarik

Non-payment in breach of a matrimonial money order is itself contempt of court. Proof that the failure was culpable or wilful is not required to establish contempt, but the payer’s ability to pay is central to the court’s discretion whether, and on what terms, to act on it. On a Hadkinson application, ability to pay is proved to the civil standard. The criminal standard applies where the payer’s liberty is at stake, such as on a judgment summons. A party should be debarred only as a last resort. The court may instead impose proportionate conditions which pursue the legitimate aims of securing compliance, facilitating enforcement and ensuring a fair hearing.

The wife held substantial lump-sum and periodical-payment orders against the husband. The husband had made only limited payments and held business assets through a trust and corporate structure. The wife brought substantive applications concerning the trust and sought a preliminary order preventing the husband from participating in that hearing, or making his participation conditional, because of his non-compliance.

The application raised whether non-payment of a matrimonial money order was contempt without proof of wilful non-payment, what standard of proof applied to ability to pay, and what response was proportionate where the husband would be a respondent to new applications involving jurisdictional issues.

1. The wife’s Hadkinson application succeeded in principle. Non-payment in breach of a matrimonial money order constituted contempt without proof that the husband had the means to pay. Culpability and ability to pay were relevant to the discretionary response. The court also found, alternatively and to the criminal standard, that the husband could have paid substantially more.

2. The civil standard of proof applied to ability to pay on a Hadkinson application. The criminal standard was required where liberty was at stake, but the application was civil and concerned procedural justice rather than imprisonment.

3. The jurisdiction to restrict a contemnor’s participation derives from Hadkinson v Hadkinson [1952] P. 285 and the flexible approach approved in X Limited v Morgan-Grampian (Publishers) Limited [1991] 1 AC, 1. The court must consider whether the contempt impedes the course of justice, whether another effective means exists, and whether the proposed restriction is directed to a legitimate aim and proportionate.

4. The husband was not simply debarred from defending the December 2006 applications. They were fresh applications, he was a respondent, and jurisdictional issues arose. Instead, proportionate conditions were imposed: he had to communicate specified positions irrevocably to the trustees and pay pound for pound into a joint solicitors’ account for sums spent on his December hearing. Compliance permitted full participation; non-compliance resulted in debarment.

5. The conditions were intended to facilitate a fair hearing and enforcement, not to punish. The Hadkinson jurisdiction remained a remedy of last resort.

The judgment describes earlier stages in the same litigation. The wife obtained financial orders in 1999. The husband’s application for permission to appeal was dismissed in 2000. A later committal order was set aside on appeal: Mubarak v Mubarik [2001] 1 F.L.R. 698. Ryder J. later imposed Hadkinson conditions on the husband’s application to reduce periodical payments: Mubarak v Mubarik [2004] 2 F.L.R. 932; the Court of Appeal refused permission to appeal.